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Document
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M-373
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Institution/HIC
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York Regional Police Services Board
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Summary
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NATURE OF THE APPEAL: This is an appeal under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The requester, who is a member of a police association, asked the York Regional Police Services Board (the Board) for access to a copy of a contract entered into between the Board and its former Chief of Police. The requester was particularly interested in obtaining the commencement and termination dates of the agreement, the salary and benefits payable under the contract and any reports provided by the former Chief to the Board. The Board agreed to release the entire text of the agreement, dated July 8, 1992, with the exception of the salary figure paid to the former Chief. The Board's decision to withhold this information was made under section 14(1) of the Act (invasion of privacy) with particular reference to the presumption against disclosure of personal information found in section 14(3)(f) of the Act (information relating to an individual's income). A Notice of Inquiry was provided to the parties to the appeal including the former Chief of Police. Representations were received from the appellant and the Board only. DISCUSSION: Under section 2(1) of the Act , "personal information" is defined, in part, to mean recorded information about an identifiable individual. Based on this definition, I find that the salary of the former Chief qualifies as his personal information for the purposes of the Act . In addition, the agreement does not contain any personal information relating to the appellant. Section 14(1) of the Act is a mandatory exemption which prohibits the disclosure of personal information to any person other than the individual to whom the information relates. There are a number of exceptions to this rule, one of which is found in section 14(1)(f) of the Act . This section provides that a government institution must refuse to release the personal information of other individuals except if the disclosure does not constitute an unjustified invasion of personal privacy. Sections 14(2), (3) and (4) of the Act provide guidance in determining this issue. Section 14(4)(b) of the Act identifies a situation where the disclosure of personal information would not amount to an unjustified invasion of personal privacy. This provision specifies that, despite the application of section 14(3), a disclosure of personal information does not constitute an unjustified invasion of personal privacy if it discloses financial or other details of a contract for personal services between an individual and an institution. Based on the wording of this provision, the first step in my analysis will be to determine whether the agreement entered into between the Board and the former Chief constitutes a contract for personal services or a contract of employment. To state the matter a bit differently, I must decide whether the former Chief was engaged as an independent contractor or as an employee of the police force. The answers to these questions will depend on a careful analysis of the key terms of the agreement, which I will now summarize. The preamble to this agreement states that the purpose of the document is "to provide for the orderly transition from employment to retirement from employment" of the former Chief. The agreement then stipulates that the former Chief must resign as Chief of Police on a prescribed date. The document goes on to specify that the former Chief will remain a member of the police force for a period of 18 months from that date after which his retirement will be accepted. The document next stipulates that, over the life of the agreement, the former Chief is to withdraw from the workplace and provide consulting services to the Board on an "as-needed basis". The agreement also precludes the former Chief from engaging in any form of gainful employment during the 18 month period except with the permission of the Board. The agreement then states that the former Chief will be paid a specific salary (subject to the normal statutory deductions), along with most of the usual employment benefits until his retirement date. In particular, the former Chief will continue to participate in the Board's pension plan. In its representations, the Board submits that the agreement constitutes a contract of employment. It points out, in this respect, that the former Chief was permitted to retain his police equipment (with the exception of his revolver) and continued to be subject to the rules made by the Board under s.31(6) of the Police Services Act for the effective management of the police force. The Board also points out that the former Chief, by virtue of the contractual prohibition against seeking secondary employment, was entirely dependent on the Board for his income during the term of the agreement. The appellant, on the other hand, contends that the former Chief was paid as a consultant and not retained as an employee. The appellant also suggests that the contract entered into between the parties is, in reality, "a disguised retirement package which should have been clearly defined as such". With the important provisions of the agreement and the positions of the parties having been set out, I must now determine whether the former Chief was engaged as an employee or as an independent contractor. These terms are both defined in Black's Law Dictionary (Sixth Ed.). In this publication, employee is accorded the following meaning: A person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed ... One who works for an employer; a person working for salary or wages ... The term independent contractor is then defined as: Generally, one who, in exercise of an independent employment, contracts to do a piece of work according to his own methods and is subject to his employer's control only as to end product or final result of his work ... One who renders service in the course of self employment or occupation, and who follows employer's desires only as to results of work, and not as to means whereby it is to be accomplished ... The question of whether an individual may be characterized as an employee or an independent contractor has been the subject of many decisions made by the courts and various administrative tribunals. Among the factors which are judged to be significant i
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Legislation
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Subject Index
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Published
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Aug 11, 1994
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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